National Life Insurance Co. of the United States v. Coughlin

Mr. Justice Burke delivered the opinion of the court. The parties plaintiff and defendant were reversed in the trial court and for convenience are hereinafter referred to as they appeared there. One Charles Goldtrap carried an accident and health policy in defendant company which provided for payment of $300.00 in case of death and designated May Coughlin as the beneficiary. To recover thereon this suit was brought and from a judgment on the pleadings in favor of plaintiff, defendant brings error. One clause of the policy reads: “This Policy does not cover injuries, fatal or non-fatal, * * * which are caused wholly or in part by the intentional act of any person other than the Insured (assaults committed on the Insured for the sole purpose of burglary or robbery excepted).” The facts are settled by stipulation as follows: “On the 27th day of December 1919, Charles Goldtrap while near or on the premises of Elizabeth Haskett, was shot and killed by the said Elizabeth Haskett some time during the evening of said day; that the said Elizabeth Haskett heard some one near the premises; that she went to the back door of her residence, fired a revolver into the darkness to frighten away anyone who might be around; that at said time she did not see the said Charles Goldtrap or anyone else, did not know that he was near and did not .intend to kill him or anyone else, but that she did intend to fire the revolver and did fire the revolver, and this was the shot that killed Charles Goldtrap, and shortly thereafter his body was found near or in the alley in the rear of her house.” The sole question for our determination is: Was this accident excluded by the language of the clause of the [442] policy above quoted? If the position of the plaintiff is correct said clause must be construed as if worded thus: “This Policy does not cover injuries, fatal or non-fatal, intentionally inflicted by the act of any person other than the Insured (assaults committed on the Insured for the sole purpose of burglary or robbery excepted).” It will thus be observed that we are called upon to decide the distinction, if any, between “injuries caused by the intentional act of any person” and “injuries intentionally inflicted by the act of any person.” It is suggested by counsel for plaintiff that the correct interpretation of the disputed clause is to be found in the parenthesis, and that the only accidents excepted are those received as the result of “assaults committed on the Insured for the sole purpose of burglary or robbery.” We think this position deserves no serious consideration and that it is perfectly apparent that the parenthetical clause is an exception from the exception. In this case death resulted “wholly or in part” from the intentional firing of the shot, though the result thereof was not intended and could not have been foreseen, just as in another case it resulted “wholly or in part” from the intentional striking of a blow, though the result thereof was not intended and could not have been foreseen. Ryan v. Continental Casualty Co., 94 Neb. 35, 142 N. W. 288, 48 L. R. A. (N. S.) 524, Ann. Cas. 1914C, 1234. In that case, the only one in point brought to our attention, the same phrase was under consideration by the court. If the language here in question were ambiguous, the judgment might be affirmed under the rule of construction laid down in Preferred Accident Ins. Co. v. Fielding, 35 Colo. 19, 83 Pac. 1913, 9 Ann. Cas. 916, but we find no ambiguity. This was an “injury caused by an intentional act” of Elizabeth Haskett, but it was not “intentionally inflicted” by her. The unfairness of such a contract and the narrow limits of the- field covered by it are strongly urged in support of an affirmance. The obvious answer is that the contract, [443] being definite and certain, must stand as made by the parties. The court is powerless to substitute another therefor by process of construction. The judgment is reversed. Mr. Chief Justice Scott, and Mr. Justice Campbell not participating. Mr. Justice Teller sitting as Chief Justice, dissents.